In March 2018, Congress passed the CLOUD Act, which authorizes the United States to enter into bilateral executive agreements with partners that remove legal barriers for each party to access electronic data for certain criminal investigations. The agreement was facilitated by the Overseas Production Orders Act 2019, which won royal approval in February of this year. The agreement will enter into force after a six-month review of Congress, provided for by the CLOUD Act, and the corresponding revision by the British Parliament. Although the full agreement has not yet been released, it allows law enforcement agencies to obtain judicial authorization to go directly to technology companies in the other country that contain electronic evidence of an investigation. While obtaining this type of data would generally require a tedious and tedious process of mutual legal assistance (MLA), it is hoped that the provision of a more direct route for obtaining evidence will allow for better investigations. In June 2019, we wrote about the Overseas Production Orders Act 2019 (COPOA), an unannounced law that created a framework for the government to enter into mutual agreements with other nations to streamline the process of obtaining electronic data stored from foreign-based companies. The agreement allows British law enforcement agencies to access data from U.S. communications providers without verification from U.S. authorities, and the U.S.
enjoys reciprocal rights. Despite this reciprocity, not all things are the same. In practice, under current legislation, the UK earns more than the US – faster access to data from major US communications providers that can be used in UK surveys. For the United States, there is no new procedure for finding data abroad that is transposed into legislation. However, the United States now benefits from these agreements, as the burden of processing mutual legal assistance (“MLAT”) is reduced. In anticipation of ratification of the agreement, the countries of the National Council of the United States and the United Kingdom should familiarize themselves with the new regime and implement the necessary procedures and procedures to respond to the electronic data production mandates of foreign agencies within the relatively short time frame. The agreement is based on national legislation5 – the power of each government to adopt a data creation order must be based on its own laws and not on the agreement itself (although the agreement sets limits to what can be achieved). Orders submitted to the agreement are governed by the domestic law of the country of issue6.
The United States and the United Kingdom both commit in the agreement to ensuring that their national legislation ensures compliance with any order submitted to it.7 It is therefore important to understand the parameters of the agreement before turning to national legislation. The new bilateral data access agreement between the United States and the United Kingdom will significantly speed up investigations by removing legal barriers to the rapid and effective collection of electronic evidence. Under its terms, prosecutions, if they have judicial authorization, can go directly to technology companies in the other country to access electronic data instead of going through governments, which can take years. The current application for mutual legal assistance (MGW), in which law enforcement and other law enforcement authorities and other authorities are submitted and approved by central governments, can often take many months.